Tusiime v Attorney General (Complaint No UHRC/FPT/77/2010) [2022] UGHRC 23 (20 January 2022)


## **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT FORT PORTAL COMPLAINT NO UHRC/FPT/77/2010 TUSHME RICHARD::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT - AND - ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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## **DECISION**

## **BEFORE; HON. COMMISSIONER SHIFRAH LUKWAGO**

The Complainant - Tusiime Richard a resident of Kyarusozi L. C I, Kyarusozi Ward Parish, Kyarusozi Sub County, Kyenjojo District alleges that on 5lh November 2010 he was arrested on allegations of theft of a tipper lorry by the Officer in Charge Criminal investigations (OC CID) of Kyarusozi Police Post who was in the company of two Special Police Constables (SPCs). That during arrest, the said officers beat him all over his body and as a result of the beatings inflicted upon him some metals in his legs were dislodged. That he sought treatment from Alpine Medical Centre where an x-ray was carried out before being referred to Kyenjojo health Centre IV for further medical attention.

This matter came up for 1st time hearing on 15/05/2017 before former Commissioner Stephen Basaliza. At the hearing, the following issues were framed for determination

- 1. Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated? - II. Whether the Respondent is vicariously liable? - III. Whether there are any remedies available to the Complainant?

Examination in chiefwas carried out on the Complainant, Nyemera Francis (CW I) and Ishaura Sam (CW II).

When the matter came up for further hearing on 21/08/2017 examination in chief and cross examination was carried out on Dr Kalyega Stephen (CW III). Cross examination was carried out on the Complainant, CW I and CW II.

The matter came up again on 24/10/2017; the Complainant and the Respondent were both present. Commission Counsel Afra Apio informed the Tribunal that an expert witness from Alphine Medical Centre who had been summoned did not appear for the tribunal hearing despite receipt of a summon. An adjournment was therefore granted for further hearing. On 8/05/2018, examination in chief and cross examination was carried out on Dr Ssebuko Arthur (CW IV). This was the close ofthe Complainant's case.

The matter came up for defence case on 5th March 2019 before former Commissioner Victoria Businge-Rusoke. State Attorney Singura Isaac prayed for summons to be issued against the CID officer Kyenjojo Police Station. When the matter came up for defence on 7/05/2019, the Complainant was absent. A further adjournment was granted for defence case. On the 20/08/2019 the matter came up again for defence case, Commission Counsel Mwebaze Albert informed the Tribunal that summons had been issued to the OC CID Kyenjojo Police Station through the Regional Police Commander but he was not present. Learned State Attorney Tusiime Ann prayed to file written submissions in defence which were accordingly filed on 28/10/2019. The matter was then reallocated to me for a decision.

Having laid out how the matter proceeded at the Tribunal, I will now go ahead and make a decision based on the proceedings and evidence on record.

I will resolve the Issues in the order they were raised.

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**Issue I: Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated?**

The **Universal Declaration of Human Rights (UDHR), 1948** under Article 5 provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, **Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996** absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The **African Charter on Human and Peoples' Rights (ACHPR) 1981** under **Article** Sreiterates the total prohibition of violation ofthe same aforementioned right.

The **Constitution of the Republic of Uganda 1995** under **Article** 24prohibits subjection of anyone to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is provided for as a non derrogable right under **Article 44(a)** ofthe same constitution.

Torture is defined by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (UNCAT) under **Article** Ito mean

*"...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a personforsuch purposes as obtainingfrom him or a thirdperson information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a thirdperson, orfor any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence ofa public official or otherperson acting in an official capacity. It does not include pain or suffering arising onlyfrom, inherent in or incidental to lawfulsanctions. "*

The definition **in Article <sup>1</sup>** of the UNCAT has been applied by this Tribunal in the matter of **Fred Tumuramye -and-Gerald Bwete &Others UHRC NO 264/1999,** where Commissioner Aliro Omara spelt out the elements of torture as;

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- *a)* An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person - *b)* For a purpose such as obtaining information, or a confession, punishment, intimidation, coercion or for any reason based on discrimination - *c)* The act is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

I shall therefore look for proof ofingredients oftorture before making my decision.

In his testimony, the Complainant testified that at around 8:00 pm on 5th November 2010 while he was at home with his wife Kansiime Beatrice, he was approached by CW I who was in the company of two men. CW I requested him to move with him to Kyarusozi trading Centre to see the people who wanted to give him a job of transporting cabbages from Kyenjojo District to Ibanda District. Upon reaching Kyarusozi trading Centre, two men who were in a black permio car grabbed him and asked him to hand over the keys his lorry. Upon refusing to hand over the keys, the said men begun beating him. He recognised one Monday the OC CID and the OC of Kyarusozi Police whom he does not know the name. The Policemen were wrestling him and as he tried to defend himself he fell down. He bruised himself and his metallic leg became dislocated. He later sought medical treatment at Kyenjojo Health Centre and Alphine Medical Centre.

In cross examination, he confirmed that he was defending himself when he fell down. He sought for treatment 15 minutes after he had sustained injuries. His wife went to a drug shop and bought some tablets for him. He went to Alphine Medical Clinic three days later to seek further medical treatment and later at Kyenjojo Hospital.

CW I Nyemera Francis testified that the Complainant is his brother. At around 7:00 pm in 2010 while working as a contract driver at McLeod Russel Uganda Tea Company in Kabarole District, he was approached by two people who asked him for a car to transport cabbage to Kamwenge District. He informed the said persons that his car was not in a good condition but the Complainant had one in good condition. That he connected them to Tusiime and talked with him alongside the trading centre. That at the road side they saw a small Premio car parked and as they bargained with him, they arrested him. That those who arrested him included the OC/CIID and O/C plus two other men all from Kyarusozi Police Post. That the OC/CIID was dressed in civilian clothes and the O/C was in uniform Khaki at the rank of ASP. As the said men were negotiating with the Complainant, the Complainant was arrested by the OC/CID Kyarusozi Police Post who was in the company of two policemen on allegations of theft of a lorry. Upon resisting arrest, the Policemen who were using gun butts began beating the Complainant. That they put him down and beat him. That two of them had guns. They beat him with gun butts on allegations that the vehicle Tusiime was driving was stolen from Kampala. He further testified they took Tusiimeto hospital. The Complainant had bruises and that his legs were paining. That the next day he was taken to Kyenjojo.

In cross examination, he confirmed that there was a fight between the Policemen and the Complainant. He did not know who treated the Complainant.

CW II testified that the Complainant was arrested from Kyarusozi Trading Centre by five men who were travelling in a premio car. He recognised the OC and OC CID Kyarusozi Police Post among the men. Upon the Complainant resisting arrest, the Policemen begun beating him.

In cross examination he stated that the complainant defended himself from arrest.

CW III testified that he is a medical doctor with 19 years of experience. He works at Fort Portal Regional Referral hospital and also carried out private practice at Alphine Medical Centre. He testified that he examined the Complainant once at Alphine Medical centre. That the complainant was complaining of a swollen leg and claimed he had been assaulted. The complainant's medical history shown that the he had previously undergone an operation. An x-ray of the leg showed that a pin had been used to fix the previous injury. He observed that the pin was dislodged and not in position. He did not observe signs of external violence. His findings are noted on Exhibit II.

The Respondent's counsel filed submissions and in his submissions learned Senior State Attorney Singura Isaac stated that the Complainant upon being requested to turn over the keys of the stolen vehicle, he resisted arrest and equally fought with the arresting officers. This is corroborated by CW I who under cross examination confirmed that the Complainant indeed fought with the Police during arrest. The injuries complained were not inflicted by the Police as alleged but were as a result of a pervious accident sustained by the Complainant. CW II confirmed that the complainant was a previous client of his with a previous injury which was never traced to the alleged torture. Learned state Attorney cited Section 14 of the Criminal Procedure Code Act Cap 116 and Section 28 (1) (c ) of the Police Act which give powers to Police to use force were a person prevents lawful arrest. Counsel submitted that the Complainant cannot therefore turn around and allege torture yet he fully engaged into a fight with the Police while resisting lawful arrest. Relying on the testimony of CW I and CW III there was no sufficient evidence to support the Complainants allegations oftorture.

**Article 24 ofthe Constitution** guarantees freedom from torture or cruel, inhuman or degrading treatment or punishment. This guarantee is absolute and in fact prohibitory as per Article 44 (a) ofthe Constitution. For an act to amount to torture, not only must there be a certain severity in pain and suffering, but the treatment must also be intentionally inflicted for a prohibited purpose.

The Complainant in his testimony testified that he was beaten on allegations oftheft of a truck. CW I saw the Complainant being subjected to beatings. In consideration of Sections 101-103 of the Evidence Act Cap 6 the Complainant bears the burden to prove the allegations against the respondent on a balance of probabilities. See **Stewart Gawaya Tegule Vs Kampala City Council Authority & Anor HCCS 214 of 2011**

I am in agreement with learned State Attorney that it is the duty ofthe Policemen to arrest the complainant and in doing so they had to use reasonable force. The question therefore is whether the force used in order to effect the arrest was reasonable in the circumstances. In the instance case, the complainant testified that he was "defending" himselfwhen he sustained the injuries complained about. This is corroborated by CW I and CW II. It is the finding of this Tribunal that the Complainant was not subjected to acts of physical torture by the injuries complained about were as a result of his resisting arrest.

I therefore resolve this Issue II in the negative. Having resolved issue I in the negative, I see no need to Resolve Issues II and III.

## **ORDERS**

The Tribunal hereby orders as follows:

- 1. The complaint is dismissed. - 2. Each party shall bear its own costs.

Either party not satisfied with this decision has the right to appeal to the High Court ofUganda within 30 days from the date hereof.

Dated at FORT PORTAL this day of... <sup>2022</sup>

**SHIFRAli/LUKWAGO PRESIDING COMMISSIONER**